Comparable treatment of leave

Case 12: The facts

This case concerns an Austrian government rule that took account of an individual’s military service, but not any period of parental leave, when calculating entitlement to redundancy pay. The issue was whether this different treatment of the two types of unpaid leave was contrary to EC law.

The ruling

The ECJ held that the state is not obliged to treat both types of leave in the same way when calculating length of service. Although it accepted that the rule excluding parental leave affected more women that men, the ECJ held that parental leave is taken voluntarily by a worker in order to care for a child. The fact that the leave may be taken because of a lack of alternative childcare facilities does not make a difference.

The court said that parental leave is different from maternity leave as it does not have the same purpose and does not have to be taken at a particular time. National service, on the other hand, is a civic obligation laid down by law and is not governed by the individual interest of the worker; a person called up on military service is removed from work at a time not of their choosing.